By Elizabeth Berg, Trüpp HR

When it comes to recruiting and interviewing, many hiring managers may not be aware that, like employees, applicants and candidates are protected by Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967, The Equal Pay Act of 1963, The Pregnancy Discrimination Act of 1978, and other state and municipal regulations. These laws prohibit employers from discriminating against applicants and candidates based on sex, race, color, national origin and religion. Although this might seem straightforward to hiring managers, there are areas where they might accidentally step on a legal landmine.

Non-compliant applications

If your organization hasn’t reviewed and updated its employment application in the last few years, it may be time to take a second look. Many cities and states have implemented laws restricting specific questions on employment applications.

Job applications should not ask for the following:

  • Social security numbers. Due to identity theft and general privacy issues, collecting social security numbers on applications can open your company up to unnecessary risk. Wait until after the candidate has accepted the job offer to collect this information for payroll setup or if needed for a background check.
  • Age or date of birth. To prevent age discrimination, both age and date of birth should be removed from employment applications. If the job has a defensible minimum age requirement due to regulations associated with the job duties, you may opt to have a question that asks if the applicant is over the minimum age.
  • Citizenship confirmation. Applicants should not be asked about their citizenship. This could be perceived as discrimination based on national origin. Instead, confirm whether the applicant is legally eligible to work in the United States. If you choose to include this question, it is imperative to ask it of all applicants.
  • Previous pay information. Many states are implementing stronger pay equity laws in addition to the Equal Pay Act of 1963. Collecting salary history information can create opportunities to pay applicants inequitably and is illegal in many states and municipalities.
  • Criminal History. Many states have “ban-the-box” laws preventing discrimination based on criminal history prior to presenting a job offer. Remove any questions from your organization’s employment application that ask about criminal history. If the job has a defensible reason to require a background check due to regulatory requirements associated with the job duties, include this information in the job posting and wait to perform the criminal background check after they have signed the offer of employment.

Small talk trap

Hiring managers might have the best intentions when chatting with an applicant before, during, or after the interview. However, innocent comments and questions can lead to dangerous territory. Things that should be avoided in small talk include:

  • Marital status – “Are you married?”
  • Family matters – “Do you have or want children?”
  • Health history – “What happened to your arm?”
  • Political or religious affiliations – “What did you do for Christmas?”
  • Age-related questions – “What year did you graduate from high school?”
  • Citizenship, national origin, or ethnicity – “That’s a unique last name, where are you from?”

Documenting disasters

Occasionally, even if not asked, an applicant will offer up information that is not related to the job or illegal to consider when making a hiring decision. Do not document the information or comment on it; gently redirect the conversation back to topics related to the candidate’s ability to perform the job duties. It is imperative to avoid documenting any irrelevant information.

Screening slipups

Rights and protections on employee screening practices should be taken very seriously. When conducting employee screenings, ensure that company practices are in accordance with state and federal laws.

Specific protections and laws to be aware of include:

  • The Fair Credit Reporting Act. This act provides guidance on legally conducting employment background checks on consumer reports. These include background checks, credit checks, driving records, and drug and alcohol screenings.
  • Additional Credit Screening Laws. Several states have laws that extend beyond the Fair Credit Reporting Act with regards to when and how employee credit checks can be conducted and used.
  • Ban-the-Box. 13 states and several cities have implemented ban-the-box laws that provide restrictions and guidance on collecting and using criminal history information for an employment decision.
  • Marijuana use. With the rising number of states that have legalized medical and recreational marijuana use, some states are requiring employers to make reasonable accommodations for employees who use marijuana to treat medical conditions and/or prohibiting employers form screening for marijuana use.

Although many of these common pitfalls occur without the intent to discriminate, they still put organizations at risk. Ensure that your hiring managers are trained and equipped to navigate the recruiting and hiring process in a legally sound manner.

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